Thursday, June 5, 2014

In April, the U.S. 2nd Circuit Court of Appeals said again that N.Y. City could constitutionally forbid the Bronx Household of Faith and other churches to hold worship services in public schools.

Writing for the majority, Judge Pierre Leval used almost the same reasoning as he had when the court ruled the same way in 2011.

In both cases he declared a religious worship service a particular kind of activity, essentially different from the speech it includes, such as prayer, religious instruction, expression of devotion to God, and the singing of hymns.

Leval quoted from the 2011 decision, noting the “important difference between excluding the conduct of an event or activity that includes expression of a point of view, and excluding the expression of that point of view.”

The church has taken its case up and down the court system so many times, that Judge Leval referred to the April decision as Bronx V. While the case moved from court to court, Bronx Household worshipped in P.S. 15 for fourteen years.

It may continue to worship there. First, the church has appealed the April ruling. Second, N.Y. City’s new mayor, Bill de Blasio, said during his campaign that he would allow worship in the city’s public schools.

Third, after the 2011 decision, the Legislature nearly passed a bill requiring N.Y. City to let churches worship in public schools. Only a 2012 District Court victory for the church stopped the process. If the church loses its appeal, and de Blasio changes his mind, legislators could revive the 2011 bill.

In 2011, Bronx Household had argued that it had a free-speech right to worship in a public school. After it lost the case, the church sued again, claiming that the school policy unconstitutionally burdened its religious liberty.

It reasoned this way:

N.Y. City charges users of its buildings only a maintenance fee, a payment much lower than a N.Y. City rent. If the city bars worship services in its buildings, the church must pay high rent elsewhere. The high rent burdens the church’s religious liberty. The District Court agreed.

In April, Judge Leval wrote, “The Free Exercise Clause…has never been understood to require government to finance a subject’s exercise of religion.”

Some congregations do not hold worship services. The District Court said N.Y. City’s ban on worship services discriminated against those groups that held them.

Judge Leval disagreed. He wrote, “Religions that conduct religious worship services.…may use the facilities for the same purposes and in the same manner as the facilities are used by religions that do not conduct religious worship services.”

N.Y. City bars worship services in public schools, because it doesn’t want to violate the U.S. Constitution’s ban on government establishment of religion.

The District Court said the U.S. Supreme Court had never interpreted the No-Establishment Clause to forbid worship services in public schools, so the city must allow them.

Judge Leval said the High Court had explicitly rejected that argument. He observed that city school board had good cause to consider the worship services a religious establishment. He wrote,

“During Sunday services, under the District Court’s injunction, the Board’s schools are dominated by church use: ‘Church members post signs, distribute flyers, and proselytize outside the school buildings; both congregants and members of the public identify the churches with the schools.’”

The District Court said N.Y. City had violated the No-Establishment Clause, because it decided what made a worship service.

Judge Leval wrote, “The Board’s policy is to rely on the applicant’s own characterization.…The Board may…look beyond the application at the applicant’s website and other public materials.”

He added, “Even if the Board were making its own determinations, [the Supreme Court] would not prohibit such a policy.” He referred to a recent suit in which the Justices themselves determined whether a particular church employee was a minister.

“The decision puts us back at square one,” said Rebecca Robertson, director of the American Civil Liberties Union of Texas (ACLU).

“These banners send a message to students of minority faiths and non-believers that they are not welcome at their own football games.”

At high school football games in Kountze, Texas, the cheerleaders carry banners with quotations from the New Testament.

For example, one banner read, “I can do all things through CHRIST which strengthens me.”

Somebody complained. The superintendent consulted a lawyer and banned the banners.

Several cheerleaders sued the school district in state court. Their lawyer claimed that the cheerleaders had a right to express their personal opinions on the banners.

The Kountze school board declared that it, not the cheerleaders, controlled the banner displays. However, the board adopted a policy to allow the religious messages as “fleeting expressions of community sentiment.”

The(ACLU) submitted a brief. It agreed that the school board controlled the displays.

It asked the court to forbid the religious messages, because they violated the No-Establishment Clause of the U.S. Constitution. They endorsed religion, coerced audience participation, and entangled the school with religion.

In May, the Court of Appeals Judge dodged the church-state issue.

He ruled that the cheerleaders had no standing to sue, because the district had agreed to allow the religious banners.

He avoided offending the pro-banner citizens, and he upheld the authority of the school district.

The district got what it wanted, until somebody challenges the banners in federal court. The cheerleaders’ lawyer will ask the Texas Supreme Court to let the cheerleaders direct the banner display.

In April, the Arizona Supreme Court in effect approved a state voucher law, the Arizona Empowerment Scholarship Act (ESA).

In October, the Arizona mid-level Court of Appeals had upheld the Act.

Plaintiffs appealed to the Arizona Supreme Court, but in April, it refused to hear the appeal.

The Arizona Constitution says, “No tax shall be laid for the appropriation of public money made in aid of any private or sectarian school.…” and “No money shall be appropriated or applied to any religious instruction.”

Under the ESA, eligible children get cash to buy lessons at private schools, including religious ones.

To get grants, parents must waive their children’s Arizona constitutional right to a public education.

Parents who home school or otherwise hold down education costs may pay for college with the saved dollars.

In 2012 and 2013, Arizona courts upheld the ESA, because the tax-raised funds traveled through parents’ hands before it got to religious schools.

The Court of Appeals stressed that parents could spend the money on a variety of educational activities.

Congress imposed a tuition-voucher program on the District of Columbia over the objections of its government. U.S. Senate bill S.1909, the CHOICE Act, would expand indefinitely both the number of children enrolled and the duration of the program.

Disabled Children

Under the CHOICEAct, states could use tax-raised federal funds provided under the Individuals with Disabilities Act (IDEA) to provide private-school tuition vouchers for disabled children.

The beneficiary schools could discriminate among applicants on the basis of religion and sex.

Religious schools could choose employees on the basis of religion.

Military Children

The CHOICEAct would create a five-year pilot program. The federal government would spend tax-raised dollars on private-school tuition vouchers for children who live in selected military areas.

The vouchers payments would rise with inflation.

The beneficiary schools could discriminate on the basis of religion and sex.

Religious schools could advance religion. If they did, the voucher students would have to take the lessons and participate in the worship services.

Religious schools could discriminate against employees on the basis of religion.

The Act would authorize $10 million a year for the program, the money to be deducted from the salaries and expenses of the U.S. Department of Education.

Letters to Senators

U.S. postal service to Congress has never recovered from the anthrax scare. If you send letters to our U.S. Senators, please address their local offices.

Under U.S. Senate bill S.1968, the Scholarships for Kids Act, states could spend tax-raised federal education dollars on tuition grants for poor children to attend private schools, including religious ones.

Participating states need not “submit any standards for academic content or student academic achievement for review or approval.”

The beneficiary private schools could discriminate among children on the basis of sex.

Religious schools could advance religion.

If a they did, the voucher students would have to take the lessons and participate in the worship.

Religious schools could hire and fire on a religious basis.

The federal government would assess the program, but it could not require the state to collect any information that it would not otherwise collect.

For instance, a state could refuse to provide information about the effect of the vouchers on court-ordered racial integration of public schools.

No federal employee could exercise any supervision over “the instructional content or materials, curriculum, program of instruction.”

U.S. postal service to Congress has never recovered from the anthrax scare. If you send letters to your U.S. Senators, please address their local offices.

In September, attorney David Niose told the Massachusetts Supreme Judicial Court that the phrase under God in the Pledge of Allegiance discriminates against school children who don’t believe in God.

He said the phrase “portrays true patriots as those who believe the nation is under God, whereas it portrays nonbelievers as second-class citizens at best, downright unpatriotic at worst.”

In May, the Court unanimously disagreed. It held that underGod did not violate the State Constitution’s guarantee of equal protection of the laws.

Chief Justice Roderick Ireland wrote, “There is no evidence…that the Doe children have ever been subjected to any type of punishment, bullying, or other mistreatment, criticism, condemnation, or ostracism as a result of not participating in the pledge or not reciting the words under God.”

He declared, “Reciting the pledge …is not a litmus test for defining who is or who is not patriotic. The schools confer no privilege or advantage of patriotism…to those who recite the pledge in its entirety.”

Justice Barbara Lenk concurred, because the Doe children had not suffered. However, she thought the phrase did discriminate.

She wrote, “A reference to a supreme being, by its very nature, distinguishes between those who believe such a being exists and those whose beliefs are otherwise.…

“Should future plaintiffs demonstrate that the distinction created by the pledge…has engendered…differential treatment, I would leave open the possibility that the equal rights amendment might provide a remedy.”